Is the Working Time Directive worth retaining (plus other workers' rights legislation)?

[edwin_m]

Because 'hours paid' is not necessarily 'hours worked' (in the industry I work in anyway), separate records have to be kept of the hours worked unless the Opt Out is signed. Not only kept, but monitored and enforced and acted upon if there is a breach.

All extra administration and management time.

Many companies need to record time worked in order to charge it to the correct clients, or to understand if a fixed-price project is making a profit.

For those that don't, if there's a fatigue-related incident it would be handy to have records to show the HSE what hours the employee in question has been working. It nearly always appears in RAIB investigations for example. Railway operational roles are exceptional but any employer has a duty of care under HASAWA to, for example, the many employees who drive on duty and the other road users they may (literally) impact. Or perhaps certain companies would rather not collect that evidence because it might be used against them?

Prior to the WTD there was all sorts of legislation governing rest periods, hours of work etc, but nothing governing the maximum hours of work (subject to the restrictions by default from the existing legislation).

I think you may have answered your own point here. If employers have always had to record hours of work for other reasons then checking it doesn't exceed a particular maximum is a trivial addition, especially as the WTD limit is so much above the norm that it's going to be pretty obvious which employees are at risk of hitting it.

 

[Starmill]

It will be retained if it suits the Conservative party (and by that I mean the Prime Minister and his advisors) to retain it. Should it suit them to jettison it, then it won't be.

Whether it's actually good or bad for the people it applies to is very unlikely to be relevant...

 

[edwin_m]

It will be retained if it suits the Conservative party (and by that I mean the Prime Minister and his advisors) to retain it. Should it suit them to jettison it, then it won't be.

Whether it's actually good or bad for the people it applies to is very unlikely to be relevant...

I suspect they'll try to get rid of it as not only "unnecessary red tape" but "imposed by the EU". This will suit their longer-term agenda of dismantling workers rights to make their rich friends even richer, under the guise of caring for the little people.

 

[Tetchytyke]

An employer cannot force an employee to sign an opt out.

They cannot discriminate against an employee because they refused to sign an opt out.

An employer has to do lots of things, and employers don't. Look at HMRC's list of NMW breaches every year. There are always some big names on it.

I am unsure that there was actually a problem, but the EU demanded that the UK adopted the WTD, which introduced complex administration and management time. This maximum hours of work rules was dreamt up in the context of reducing competition with several other member states who were following much stricter policies on working hours, in order to reduce their unemployment problem.

Ah, you're against it because it's an EU thing.

Of course other countries, with stricter rules, are more efficient and productive. It's almost as though English managers think presenteeism is the same as productivity.

I'm not sure there are any "onerous management tasks" required to comply with the WTD. It's not a complicated piece of legislation. In every job I've been in I've had to complete a timesheet, despite being salaried and having TOIL not overtime, because my employer wanted to check I'd worked my contracted hours. It's not exactly a huge thing to check the timesheet every now and again.

It's far less complicated than the definition of employment and hours worked for the NMW, for instance.

 

[mmh]

I suspect they'll try to get rid of it as not only "unnecessary red tape" but "imposed by the EU". This will suit their longer-term agenda of dismantling workers rights to make their rich friends even richer, under the guise of caring for the little people.

I suspect they'll do nothing as even if they wished to it would start a fight they'd have no desire to stoke.

 

[Tetchytyke]

I suspect they'll do nothing as even if they wished to it would start a fight they'd have no desire to stoke.

It's easy enough to not transfer it into UK legislation after the Brexit transition period. I doubt anyone would even notice. Of those, plenty would agree with the "freedom" to "choose" to work long hours.

The NMW is the one everyone would notice, though. And to comply with the NMW you have to keep all the same records as the WTD. I agree with you and doubt the WTD would go anywhere, but equally wouldn't put anything past this government.

 

[RT4038]

An employer has to do lots of things, and employers don't. Look at HMRC's list of NMW breaches every year. There are always some big names on it.



Ah, you're against it because it's an EU thing.

Of course other countries, with stricter rules, are more efficient and productive. It's almost as though English managers think presenteeism is the same as productivity.

I'm not sure there are any "onerous management tasks" required to comply with the WTD. It's not a complicated piece of legislation. In every job I've been in I've had to complete a timesheet, despite being salaried and having TOIL not overtime, because my employer wanted to check I'd worked my contracted hours. It's not exactly a huge thing to check the timesheet every now and again.

It's far less complicated than the definition of employment and hours worked for the NMW, for instance.

I am guessing that you have not had to work with the WTD as it applies to mobile workers then?

As I have said, I am unsure what, in a UK context, WTD was trying to solve or help. Adding bits of legislation for the sake of it is just 'red tape'.

Most of the HMRC list of breaches of NMW are technicalities though - things that were 'custom and practice' not previously considered work now are. It is unsurprising with the huge number of companies that exist, that such things will take a long time to change. And their costs have gone up, so have your prices.

In my long years of employment, I have never completed a time sheet.

 

[Tetchytyke]

As I have said, I am unsure what, in a UK context, WTD was trying to solve or help. Adding bits of legislation for the sake of it is just 'red tape'.

Most of the HMRC list of breaches of NMW are technicalities though - things that were 'custom and practice' not previously considered work now are. It is unsurprising with the huge number of companies that exist, that such things will take a long time to change. And their costs have gone up, so have your prices.

You can't argue that the WTD changes or achieves nothing and simultaneously argue that it brings in a load of red tape that didn't exist before. You can't have it both ways.

Many NMW breaches might be "technical" breaches, but not all are, I wouldn't dismiss the breaches that easily (especially where many breaches are to do with people "on call" or are mobile, such as care workers), and that also wasn't my point. NMW legislation and caselaw sets out what is work, what is employment, etc etc, and so even if the WTD was abolished employers would still need to keep all the same records for NMW purposes.

As for employers' costs, my view has always been that companies that cannot pay the NMW for a fair day's work do not deserve to be in business. The cost issue is largely irrelevant too; if employers underpay people on low wages, then the cost of that underpayment is passed to the taxpayer in increased benefit payments. Every £1 that an employer underpays someone on UC costs the taxpayer 63p in additional benefit payments, not to mention the associated reduction in income tax, employee NICs and employer NICs.

 

[RT4038]

You can't argue that the WTD changes or achieves nothing and simultaneously argue that it brings in a load of red tape that didn't exist before. You can't have it both ways.

Many NMW breaches might be "technical" breaches, but not all are, I wouldn't dismiss the breaches that easily (especially where many breaches are to do with people "on call" or are mobile, such as care workers), and that also wasn't my point. NMW legislation and caselaw sets out what is work, what is employment, etc etc, and so even if the WTD was abolished employers would still need to keep all the same records for NMW purposes.

As for employers' costs, my view has always been that companies that cannot pay the NMW for a fair day's work do not deserve to be in business. The cost issue is largely irrelevant too; if employers underpay people on low wages, then the cost of that underpayment is passed to the taxpayer in increased benefit payments. Every £1 that an employer underpays someone on UC costs the taxpayer 63p in additional benefit payments, not to mention the associated reduction in income tax, employee NICs and employer NICs.

New rules such as WTD can easily change or achieve nothing but cause a load of red tape, just by making the recording of information, or the possibility of infringement, more onerous. There was no need to record work hours, only pay hours, before WTD.

I do not know why you are confusing NMW with the WTD?

 

[najaB]

There was no need to record work hours, only pay hours, before WTD.

And this is a good thing?

 

[RT4038]

And this is a good thing?

Don't think it was a bad thing.

 

[najaB]

Don't think it was a bad thing.

Any time there's a delta between worked hours and paid hours someone is getting taken advantage of. And it's rarely the employer.

 

[edwin_m]

New rules such as WTD can easily change or achieve nothing but cause a load of red tape, just by making the recording of information, or the possibility of infringement, more onerous. There was no need to record work hours, only pay hours, before WTD.

I do not know why you are confusing NMW with the WTD?

Pay per hour is amount paid divided by hours worked. So how do you prove that pay per hour is more than NMW if you don't also record hours worked?

 

[RT4038]

Pay per hour is amount paid divided by hours worked. So how do you prove that pay per hour is more than NMW if you don't also record hours worked?

If you work in an industry where the vast majority of workers never work hour(s) without it being paid, but often are paid hour(s) without working, the additional record keeping is onerous.
The pay rates are proof that the NMW is being adhered to. If there was a dispute, the onus of proof would be on the complainant.

 

[Meerkat]

Any time there's a delta between worked hours and paid hours someone is getting taken advantage of. And it's rarely the employer.

That’s an hourly paid attitude. In a lot of finance office work you have contracted hours but you work what’s needed and that’s reflected in a higher salary than jobs with strict hours. You don’t take the money for working for an American bank expecting a nice 9 to 5!

 

[edwin_m]

If you work in an industry where the vast majority of workers never work hour(s) without it being paid, but often are paid hour(s) without working, the additional record keeping is onerous.
The pay rates are proof that the NMW is being adhered to. If there was a dispute, the onus of proof would be on the complainant.

And what small proportion of the workforce would that be?

 

[Tetchytyke]

There was no need to record work hours, only pay hours, before WTD.

I do not know why you are confusing NMW with the WTD?

I'm not confusing anything. I'm pointing out you can't record compliance with NMW if you're not recording hours worked and hours paid.

Regardless of who has to bring a complaint, without records you can't defend a NMW claim.

If you work in an industry where the vast majority of workers never work hour(s) without it being paid, but often are paid hour(s) without working, the additional record keeping is onerous.

I obviously don't know the specifics of your industry because you've not said what it is, but in most areas there is a direct correlation between hours worked and hours paid. This can both be the obvious hours and also less obvious things like time spent on call; someone who is asleep but who has to be on call on the premises is working for both the WTD and the NMW.

I cannot think of any industry where you are paid for doing nothing. On call staff who are free to come and go will only be treated as working when they are actually working, even if they're paid a flat rate retainer, but you still need to know when they are working.

In a lot of finance office work you have contracted hours but you work what’s needed and that’s reflected in a higher salary than jobs with strict hours.

I'm referring to the bold bit here: that's sometimes true, but not always.

There's a lot of exploitation of staff in retail, for instance, using a similar approach of "we'll only pay you for how long we think a job should take", with the estimates naturally being hopelessly low.

If you're a high-flying banker/lawyer/etc then yes, you work what you work- and have opted out of WTD anyway.

 

[Butts]

One area the WTD completely fails in is with regard to sick pay.

This has been highlighted during the current pandemic when people can't afford to take time of as they will only get £90 odd per week.

In my view it should at least be set at the minimum wage level, not an unreasonable expectation in the 21st Century ?

 

[najaB]

In a lot of finance office work you have contracted hours but you work what’s needed and that’s reflected in a higher salary than jobs with strict hours. You don’t take the money for working for an American bank expecting a nice 9 to 5!

Right then, let's scrap the WTD and the protections it provides for millions of low-paid/hourly workers so that a few fat-cat investment bankers don't have to make their office assistants do some extra paperwork.

 

[RT4038]

Right then, let's scrap the WTD and the protections it provides for millions of low-paid/hourly workers so that a few fat-cat investment bankers don't have to make their office assistants do some extra paperwork.

What protections did it actually achieve, that weren't there before in some form or another? It was an unnecessary piece of legislation.

== Doublepost prevention - post automatically merged: 25 Aug 2020 ==

I'm not confusing anything. I'm pointing out you can't record compliance with NMW if you're not recording hours worked and hours paid.

Regardless of who has to bring a complaint, without records you can't defend a NMW claim.



I obviously don't know the specifics of your industry because you've not said what it is, but in most areas there is a direct correlation between hours worked and hours paid. This can both be the obvious hours and also less obvious things like time spent on call; someone who is asleep but who has to be on call on the premises is working for both the WTD and the NMW.

I cannot think of any industry where you are paid for doing nothing. On call staff who are free to come and go will only be treated as working when they are actually working, even if they're paid a flat rate retainer, but you still need to know when they are working.



I'm referring to the bold bit here: that's sometimes true, but not always.

There's a lot of exploitation of staff in retail, for instance, using a similar approach of "we'll only pay you for how long we think a job should take", with the estimates naturally being hopelessly low.

If you're a high-flying banker/lawyer/etc then yes, you work what you work- and have opted out of WTD anyway.

I should think the most common hours 'paid' but not 'worked' are break periods of some form or another.

I am not sure how this keeping records helps with NMW, because no employer is going to keep records of 'work' that has not been 'paid'. So, unless the pay rate is not compliant in the first place, how will these records show any breach?

 

[Butts]

What protections did it actually achieve, that weren't there before in some form or another? It was an unnecessary piece of legislation.

Holiday Pay was improved , which probably would have gone unnoticed by salaried/unionised staff who already had a generous allocation.

 

[Meerkat]

Right then, let's scrap the WTD and the protections it provides for millions of low-paid/hourly workers so that a few fat-cat investment bankers don't have to make their office assistants do some extra paperwork.

Dunno why people think this only applies to high flyers, it’s pretty normal in finance.
There will be process people who do pretty standard hours, but if things are going wrong they hang around (and these jobs are largely outsourced to the third world now), but anyone going up the ladder will work what’s necessary and get paid accordingly (remember this is usually performance based individual pay rises and bonuses, not company wide flat pay rises).
But that’s why you get low end management getting paid what very senior managers get in councils and more ordinary jobs.

 

[najaB]

There will be process people who do pretty standard hours, but if things are going wrong they hang around (and these jobs are largely outsourced to the third world now), but anyone going up the ladder will work what’s necessary and get paid accordingly (remember this is usually performance based individual pay rises and bonuses, not company wide flat pay rises).

The WTD sets limits on average hours (typically averaged over 17 weeks). If things are going wrong for 17 weeks straight then the company has bigger problems than the hours they're working.

 

[DynamicSpirit]

That’s an hourly paid attitude. In a lot of finance office work you have contracted hours but you work what’s needed and that’s reflected in a higher salary than jobs with strict hours. You don’t take the money for working for an American bank expecting a nice 9 to 5!

I would say that's true of a lot of occupations, not just finance. I've worked in academic research and then in software development. And in both jobs, fixed hours doesn't really feel appropriate. If your'e in the middle of something very complex to do with debugging an app, and the clock hits 5pm, you're probably not going to just abandon what you're doing, knowing that tomorrow morning it'll take 15 minutes just to get back into the right mental zone and figure out where you were if you leave it now. And if a colleague in the USA needs to talk to you, you're not going to say, "sorry but your 1pm in California is 9pm for me and I don't work at 9pm". There's also an issue that for jobs where you actually find the work very interesting (which I imagine would be true for most academic researchers and quite a few software developers), you might actually be doing stuff because you enjoy it - and so the boundary between work and play gets a bit blurred. Of course the other side is you expect a reasonable employer to give you some slack if you have life admin/medical appointments/etc. in what would normally be working hours - and in general most companies I've worked for have been pretty reasonable in that regard. I suspect all this is equally true of a lot of office, technical, and managerial jobs.

WTD is in principle a good idea - and I've no doubt there are bad employers who would expect excessive hours if it wasn't for WTD. But it's not clear to me what a good way of applying that principle is when you are talking about jobs that by their nature tend to be, you do what's needed. (Clearly it is appropriate for jobs that are obvious fixed-hour ones, such as working in a shop).

 

[najaB]

I would say that's true of a lot of occupations, not just finance. I've worked in academic research and then in software development. And in both jobs, fixed hours doesn't really feel appropriate. If your'e in the middle of something very complex to do with debugging an app, and the clock hits 5pm, you're probably not going to just abandon what you're doing, knowing that tomorrow morning it'll take 15 minutes just to get back into the right mental zone and figure out where you were if you leave it now. And if a colleague in the USA needs to talk to you, you're not going to say, "sorry but your 1pm in California is 9pm for me and I don't work at 9pm".

Again, the WTD sets a limit on average working hours, normally over 17 weeks. If your average hours are over 48 per week then you're simply being expected to work too much. And I have done exactly that with my colleagues in the States - and I'm yet to have a situation where they insist on having the meeting at a time that is convenient to them but inconvenient for me. Normally we each shift by a bit so that they're in a bit early, and/or I'm in a bit late. Where it's a problem is if we need to have UK, US and APAC people on the same meeting, there's no way to avoid someone being up in the middle of the night for those ones.

Of course the other side is you expect a reasonable employer to give you some slack if you have life admin/medical appointments/etc. in what would normally be working hours - and in general most companies I've worked for have been pretty reasonable in that regard. I suspect all this is equally true of a lot of office, technical, and managerial jobs.

The WTD, along with most labour law, exists precisely because not all employers are reasonable.

 

[Tetchytyke]

The WTD, along with most labour law, exists precisely because not all employers are reasonable.

I think this really is the crux of the matter. A look at Sports Direct and their employment practices shows that much. They're back to their old tricks now the media spotlight moved on.

 

[Meerkat]

The WTD sets limits on average hours (typically averaged over 17 weeks). If things are going wrong for 17 weeks straight then the company has bigger problems than the hours they're working.

My comments were in regards to some people being militant ‘my contract says 35 hours and I won’t work a minute more’ and thinking that applies to all jobs.
I had people who worked for me who thought like that. When they went looking for other jobs they strangely found that places that were strictly 9-5 paid a lot less. Funny that.

 

[GusB]

My comments were in regards to some people being militant ‘my contract says 35 hours and I won’t work a minute more’ and thinking that applies to all jobs.
I had people who worked for me who thought like that. When they went looking for other jobs they strangely found that places that were strictly 9-5 paid a lot less. Funny that.

One needs to consider why they're being militant about it. Have they had a bad experience with a previous employer? Have they been asked previously to stay on for a bit with the promise that they'll either be paid overtime or time off in lieu, only to have this promise broken? In my working life I've been more than happy to stay back for a bit to get a job done. If my agreeing to stay back relies on goodwill alone and that goodwill isn't returned at some point, don't be surprised if the supply of goodwill ceases.

It always amazes me that some people on this forum are still of the opinion that if you're employed, you're owned. It isn't the case!

 

[DynamicSpirit]

One needs to consider why they're being militant about it. Have they had a bad experience with a previous employer? Have they been asked previously to stay on for a bit with the promise that they'll either be paid overtime or time off in lieu, only to have this promise broken? In my working life I've been more than happy to stay back for a bit to get a job done. If my agreeing to stay back relies on goodwill alone and that goodwill isn't returned at some point, don't be surprised if the supply of goodwill ceases.

That's probably true in some cases - but that argument cuts both ways. If an employer is being really fussy about making sure people work all their contracted hours, and generally being a bit of a dick about it, would you seek to excuse that employer by similarly speculating that perhaps it's because they've had a bad experience with previous workers being lazy and not doing the work or putting in the hours they were being paid for? In my experience you get good and bad employers AND good and bad workers. Some people (most people, probably) are naturally hard-working and generous. Some people are naturally lazy or tight.

 

[Tetchytyke]

My comments were in regards to some people being militant ‘my contract says 35 hours and I won’t work a minute more’ and thinking that applies to all jobs.
I had people who worked for me who thought like that. When they went looking for other jobs they strangely found that places that were strictly 9-5 paid a lot less. Funny that.

If an employer has no intention of sticking to the working week stated in the contract, then why does the contract state a working week? If an employer expects an open-ended working week without additional pay then this should be made clear, both in recruitment and in the contract. I've had one contract which set out a standard working week but said I was expected "to work hours commensurate with the grade", which was fair enough as I was the manager of the service, but which was code for "no overtime, no TOIL". Fine, we all know where we stand.

I left that job because my senior manager was a bit of a pillock, but that's by the by.

I don't think it is "militant" to expect an employer to comply with their contract, because employers expect employees to do so.

In my line of work it is broadly 9-5, but I will stay and do extra if needed. And it is sometimes needed, sometimes promotional work and sometimes the muck hits the fan at 4.55.

As GusB alludes to, clockwatching can work both ways. I had one contact centre employer who docked 15 minutes wages if you were 5 minutes late arriving, but wouldn't pay an extra 15 minutes if you were more than 5 minutes late leaving. So I stuck to my contract, I made sure I wouldn't get a call that would overrun, and then I left the job entirely as soon as I could.

In my experience you get good and bad employers AND good and bad workers.

Definitely. And that's why I think it's important to get things in black and white, so there is less scope for argument. The WTD is an important part of that.